Trial for shooting at park begins

September 4, 2013

MARTINSBURG - Jurors heard opening statements Tuesday in the trial of a Martinsburg man accused of shooting an 8-year-old girl and another man last year during War Memorial Park's Fourth of July celebration.

Daniel L. Herbert, 29, is being tried in Berkeley County Circuit Court on two counts of attempted murder, three counts of malicious assault, five counts of wanton endangerment with a firearm and one count of fleeing from a law enforcement officer in connection with the shooting that wounded the child and Gabriel "Ziggy" McGuire, 26, of Martinsburg.

Herbert was previously convicted May 29 of being a felon in possession of a firearm in connection with the July 4, 2012, shooting following a separate two-day jury trial and was later sentenced to five years in prison.

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Daniel L. Herbert

McGuire was shot twice in the back. The child, an innocent bystander, was shot once in the legs, the bullet passing through both of her thighs. Both survived the shooting and were taken to Berkeley Medical Center.

Berkeley County Assistant Prosecuting Attorney Gregory K. Jones told jurors that members of the child's family will testify that they saw Herbert pull out a gun and begin shooting at McGuire following a verbal argument.

"During the course of this attempted murder, he also shot an 8-year-old girl," Jones said.

The shooting happened at about 8 p.m. near the park's south pavilion where the child and her family were enjoying a cookout during the Fourth of July festivities. Hundreds of people were in the park at the time of the shooting and began to flee after hearing the sound of shots being fired.

Herbert, who was seen with a gun in his hands by police, fled the park on foot and tossed the five-shot .38-caliber revolver allegedly used in the shooting onto a driveway on Tennessee Avenue, records show.

"We got lucky and have a video of it," Jones said.

The video shows Herbert running with a gun in his hand, which he can be seen throwing away as he approaches a police cruiser. The video also shows the officer getting out of her cruiser and retrieving the revolver, which was found to contain five spent shell casings. A bullet recovered near the pavilion where the shooting occurred matched the gun.

Herbert's attorney, Matthew Harvey, told jurors that he didn't dispute that his client had a gun and that he fired, but said the man was acting in self-defense based on a newly revealed statement from at least one witness, who said he saw McGuire armed with a knife prior to the shooting.

"My client only did what you and I as citizens are entitled to do. If someone comes at you with a knife, you have a right to stand your ground." Harvey said.

Harvey said that it doesn't matter if his client had a gun or if he fired it, telling jurors that what's important is why he fired. Harvey is expected to explore the criminal history of McGuire, who was uncooperative with police after the shooting. The shooting victim has at least two prior felony convictions and a conviction for false swearing.